People v. Scarborough CA4/1

Filed 2/8/22 P. v. Scarborough CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D078425

Plaintiff and Respondent,

v. (Super. Ct. No. SCD284704)

JOHN HOMER SCARBOROUGH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Frederick L. Link, Judge. Affirmed.
Andrea S. Bitar, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Julie L. Garland,
Assistant Attorneys General, Charles C. Ragland and Eric A. Swenson,
Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant John Homer Scarborough guilty of elder abuse
(Pen. Code, § 368, subd. (b)(1)) and assault (Pen. Code, § 240). Scarborough
also admitted a strike prior (Pen. Code, § 667, subds. (b)-(i)). The trial court
sentenced Scarborough to six years in prison.
 On appeal, Scarborough challenges the trial court’s decision to admit
evidence of his prior act of elder abuse as propensity evidence under Evidence

Code section 1109, subdivision (a)(2).1 Scarborough contends the prior act
was not sufficiently similar to the current offense to warrant admission as
propensity evidence. He further argues that even if the prior act were
admissible, the trial court should not have allowed the prior victim to testify
live, should not have allowed details of the prior incident, and should not
have admitted photographs of the prior victim’s injuries. According to
Scarborough, because the two incidents were not “particularly similar,” such
evidence was improperly inflammatory, and its prejudicial effect outweighed
its probative value. We conclude the trial court did not abuse its discretion in
weighing the probative value of the evidence regarding the prior act against
the risk of undue prejudice. (§ 352.) Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Instant Offense
Scarborough committed the instant offense of elder abuse against
Robert S., who was 87 years old at the time of the incident. As Robert was
walking out of a grocery store, Scarborough approached him and hit him in
the face with a flashlight. The hit cut Robert’s chin and caused him to lose
his balance. He fell backwards to the ground and dropped his groceries.
Robert testified he had not had any prior interaction with Scarborough before
the incident.
A female customer, E.G., testified she noticed Scarborough walking
throughout the store, holding the flashlight, and moving his head in big
motions from side to side so that his chin was going from shoulder to

1 All further statutory references are to the Evidence Code unless
otherwise indicated.
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shoulder. Scarborough also had an expression on his face that scared E.G.
She was uncomfortable around Scarborough and avoided him in the store.
Later, E.G. heard loud, angry hollering. She went to the front of the
store and saw Robert laying on his back at the threshold of the store
entrance. Scarborough was holding the flashlight over his head, bending over
Robert and screaming at him. E.G. approached Scarborough and told him to
leave Robert alone. At that point, E.G. saw another customer, Everett G.,
come out to the front of the store, followed by the store manager.
Everett testified that when he first arrived at the grocery store,
Scarborough caught his attention because of his demeanor and body
movements, and because Scarborough was following Everett closely. Everett
entered the store, continuing to watch Scarborough through the reflection of
a display. As he was watching Scarborough through the reflection, Everett
saw Scarborough hit Robert with the flashlight between Robert’s lip and chin.
When Everett turned around, he saw Scarborough standing over Robert with
the flashlight in his hand, saying he was going to kill Robert if Robert threw
something on him again. While standing at the threshold of the door, Everett
told Scarborough to “turn [Robert] loose,” and Scarborough stepped back, at
which time the store manager exited the store.
The store manager testified that when he arrived at the front door, he
saw Robert on the ground with three employees helping him. Just outside
the front door, Scarborough was swinging a flashlight around, yelling at the
top of his lungs, making threats, and trying to make his way back toward
Robert. Scarborough was yelling “he threw fleas on me,” and other
incoherent remarks. The manager thought Scarborough was a transient
person.

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 The manager immediately stepped in front of Scarborough, who kept
trying to step toward Robert. Scarborough continued to raise his flashlight
and swing it at the manager, but never actually hit him. Scarborough was
also making threats such as “I’ll hit you,” and “I’ll get you.” The manager
kept his hands in his pockets and talked to Scarborough calmly. Scarborough
kept circling and trying to move toward the store. However, every time
Scarborough took a step back, the manager moved forward until eventually
Scarborough was “pretty far away” from the store and calmed down.
Scarborough sat on a curb about 500 or 600 feet away from the store while
they waited for the police. The entire interaction lasted about 30 minutes
before police arrived.
B. The People’s Motion in Limine to Present Evidence of Prior Elder
Abuse Under Section 1109, Subdivision (a)(2)
Relying on section 1109, subdivision (a)(2), the People moved in limine
to present evidence of Scarborough’s prior conviction of elder abuse. The
People characterized both incidents as random, unprovoked, and unjustified
attacks on elder male victims.
The People represented that the prior victim, David F., was selling hot
dogs when Scarborough punched David in the face for reasons unknown to
anyone. They were complete strangers. David fell to the ground and
Scarborough continued to punch and kick him until a crowd pulled him away.
David suffered a broken nose and abrasions to his face. The People argued
this prior act was similar to the current charge and demonstrated
Scarborough’s propensity to randomly attack innocent, elderly victims.
Scarborough’s counsel maintained the prior incident was dissimilar
because Scarborough knew David from an altercation the day before when
Scarborough was smoking in front of a church near David’s hot dog stand,
and David told Scarborough to leave. Scarborough argued that because of

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this prior encounter, the attack on David was not random. He also asserted
the case at hand was not random because Scarborough accused Robert of
spitting or throwing something on him. Scarborough further argued the
incidents were different because of what had prompted the attacks.
The court noted the incidents appeared similar as there was some
contact and conflict between Scarborough and the victim before each attack.
The People agreed, arguing that in both incidents, Scarborough believed he
had an issue with the victims and there was some prior interaction that
enraged him.
As for the severity of the attacks, Scarborough urged the details of
David’s injuries were inflammatory and his prior conduct was more
egregious. According to Scarborough, the prior incident was extremely
violent, noting he punched and kicked David on the ground causing multiple
injuries. By contrast, Scarborough added, the current charge involved a
minor act in which he confronted Robert, pushed him to the ground, and
stood over him but did not continue to hit him. Additionally, Robert suffered
only a minor scratch.
The People argued that while Scarborough did not continue to beat
Robert while he was on the ground, Scarborough hovered over him, waving
the flashlight around, yelling “I’m going to kill him.” Because witnesses were
able to separate Scarborough from Robert, Scarborough’s attack was not
necessarily over once Robert was on the ground.
The trial court found that Scarborough’s prior act was sufficiently
similar to the current charge to show a propensity to attack elders. The trial
court ruled that the evidence would be allowed under section 1109,
subdivision (a)(2).

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 C. The Prior Victim’s Testimony
During trial, the People called David to testify regarding Scarborough’s
prior act of elder abuse. David was 71 years old at the time of the incident
and was operating a hot dog cart near a Department of Motor Vehicles office,
about 10 feet away from a church. One morning, two men who David thought
were transients, were sitting on the steps of the church “smoking, swearing,
yelling, [and] doing all kinds of things.”
David asked the men to move down the road because their actions and
language would deter customers. After the men refused, David said he would
call the police. Both men left at that point. As they were leaving, one man,
who David identified as Scarborough, became hostile and yelled he was going
to come back and “I’m going to kill you.”
The next day, Scarborough came up behind David and hit him in the
back and face with closed-fist punches. One of the punches knocked David to
the ground and Scarborough continued to “pound on” him. Scarborough’s
attack stopped once a woman started screaming and bystanders got involved.
The bystanders also called the police, who came within a few minutes.
The People showed three photographs of David’s injuries. David
described his injuries as “cuts” on his forehead, his nose, and the side of his
face. He also testified that his nose was broken, and his right eye was
swollen.
The transcript of David’s testimony is 11 pages and his testimony
lasted approximately 15 minutes.
DISCUSSION
Scarborough argues his prior act of elder abuse was not sufficiently
similar to the instant offense in order to qualify for admission as propensity
evidence under section 1109, subdivision (a)(2). Additionally, he argues that

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even if it was proper to admit the fact of his prior act, the prejudice of
allowing David to testify live and admitting photographs of his injuries,
outweighed the probative value under section 352.
A. Legal Principles
Evidence of a person’s character or predisposition to act in a certain
way is generally inadmissible to prove conduct in conformance with that
character trait on a given occasion. (§ 1101, subd. (a); People v. Villatoro
(2012) 54 Cal.4th 1152, 1159.) However, section 1109 creates an exception to
this general rule, providing that “in a criminal action in which the defendant
is accused of an offense involving abuse of an elder . . . , evidence of the
defendant’s commission of other abuse of an elder . . . is not made
inadmissible by Section 1101 if the evidence is not inadmissible pursuant to
Section 352.” The statute defines elder abuse as “physical . . . abuse . . . or
other treatment that results in physical harm, pain, or mental suffering.”
(§ 1109, subd. (d)(1); see Pen. Code, § 368, subd. (g) [defining elder as a
person who is 65 years of age or older].) So long as the prior act satisfies this
statutory definition and occurred no more than 10 years before the charged
offense, it “is presumptively admissible.” (People v. Thomas (2021) 63
Cal.App.5th 612, 628 (Thomas); § 1109, subd. (e) [“Evidence of acts occurring
more than 10 years before the charged offense is inadmissible under this
section, unless the court determines that the admission of this evidence is in
the interest of justice.”]; see People v. Williams (2008) 159 Cal.App.4th 141,
145 (Williams).)
By section 1109’s incorporation of section 352, evidence of a prior act of
elder abuse is admissible unless “its probative value is substantially
outweighed by the probability that its admission will . . . create substantial
danger of undue prejudice . . . .” (§ 352.) “ ‘The principal factor affecting the

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probative value of an uncharged act is its similarity to the charged offense.
Other factors affecting the probative value include the extent to which the
source of the evidence is independent of the charged offense, and the amount
of time between the uncharged acts and the charged offense. The factors
affecting the prejudicial effect of uncharged acts include whether the
uncharged acts resulted in criminal convictions and whether the evidence of
uncharged acts is stronger or more inflammatory than the evidence of the
charged offenses.’ ” (People v. Hollie (2010) 180 Cal.App.4th 1262, 1274
[analyzing the admissibility of prior sex offenses under analogous § 1108];
Williams, supra, 159 Cal.App.4th at p. 147 [analogizing § 1108 to § 1109,
subd. (a)(2)].)
We review a challenge to a trial court’s decision to admit evidence for
abuse of discretion. (People v. Johnson (2010) 185 Cal.App.4th 520, 531
(Johnson).) “A trial court’s exercise of its discretion under section 352 must
not be disturbed on appeal except on a showing that the court exercised its
discretion in an arbitrary, capricious or patently absurd manner that resulted
in a manifest miscarriage of justice.” (People v. Brown (2000) 77 Cal.App.4th
1324, 1337, internal quotations omitted.)
B. Analysis
Scarborough’s prior act of physically abusing then 71-year-old David in
2014 satisfies the statutory definition of elder abuse; thus, it was

presumptively admissible, subject to exclusion only under section 352.2

2 Scarborough argues the prior act was not sufficiently similar to the
current offense to “qualify” for admission under section 1109, subdivision
(a)(2). However, there is no strict similarity requirement for the admission of
a prior act of elder abuse. (See People v. Loy (2011) 52 Cal.4th 46, 63; People
v. Robertson (2012) 208 Cal.App.4th 965, 991.) Rather, the similarity to the
charged offense is a factor affecting the probative value of the prior act, when
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(Thomas, supra, 63 Cal.App.5th at p. 628; § 1109, subd. (a)(2).) We find no
abuse of discretion in the trial court’s determination that the probative value
of the prior act was not substantially outweighed by a substantial risk of
undue prejudice. (§ 352.)
The prior act was highly probative because it bore many similarities to
the current offense. Scarborough’s relationships to the victims in each attack
were similar. In both incidents, Scarborough attacked unsuspecting elderly
men who did nothing wrong, and who did not know Scarborough personally.
Additionally, Scarborough believed that both David and Robert disrespected
him. He did not like that David told him to move from the church steps, and
he believed that Robert threw something on him. Further, while
Scarborough characterizes his interaction with David as “significant,” and his
interaction with Robert as “brief” or “minor,” in both instances, Scarborough
attacked in response to a perceived issue or disagreement.
The severity of the attacks were also similar. Scarborough yelled at
both David and Robert some variation of threats, including “I’m going to kill
you.” Although Scarborough did not continue to hit Robert while he was on
the ground, three witnesses testified they saw Scarborough leaning over
Robert or trying to make his way back to Robert, yelling, and waving his
flashlight at him. Further, all three witnesses testified they either stepped in
between Scarborough and Robert, or told Scarborough to leave Robert alone.
Thus, even though Scarborough did not continue to physically hit or kick
Robert while he was on the ground, Scarborough’s threatening behavior
continued after Robert fell.

conducting the weighing process under section 352. (People v. Lewis (2009)
46 Cal.4th 1255, 1285.)
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 We disagree with Scarborough’s contention that his prior act was
dissimilar to the current offense because the prior incident was not “random”
and was more severe. Scarborough’s prior act was sufficiently similar to the
charge in this case such that it was highly probative to show his propensity to
attack elders.
We are not persuaded that this probative value was substantially
outweighed by the risk of undue prejudice. Evidence is not unduly
prejudicial merely because highly probative evidence is damaging to the
defense case. (People v. Doolin (2009) 45 Cal.4th 390, 439 (Doolin).) Rather,
the “prejudice” contemplated in section 352 refers to evidence that “uniquely
tends to evoke an emotional bias against the defendant as an individual and
which has very little effect on the issues.” (People v. Poplar (1999) 70
Cal.App.4th 1129, 1138.) “In other words, evidence should be excluded as
unduly prejudicial when it is of such nature as to inflame the emotions of the
jury, motivating them to use the information, not to logically evaluate the
point upon which it is relevant, but to reward or punish one side because of
the jurors’ emotional reaction.” (Doolin, at p. 439.) Such evidence is unduly
prejudicial because of the substantial likelihood the jury will use it for an
improper purpose. (Ibid.) A trial court must consider less prejudicial
alternatives such as excluding irrelevant, inflammatory details of the prior
act. (People v. Disa (2016) 1 Cal.App.5th 654, 672-673 (Disa).)
Scarborough argues he was prejudiced because David’s testimony and
the photographs of David’s injuries created the impression that he was a
“violent, dangerous man with a tendency to assault senior citizens.”
However, this is the point of section 1109 evidence—it allows the jury to draw
propensity inferences from the prior act. (Johnson, supra, 185 Cal.App.4th at
p. 529.) Section 352 is focused on preventing undue prejudice, not any

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prejudice at all by unfavorable evidence. (Doolin, supra, 45 Cal.4th at
pp. 438-439.) Evidence is not prejudicial under section 352 merely because it
shores up the proponent’s case. The ability to do so is what makes the
evidence relevant. (Id. at p. 438.)
Scarborough contends the trial court could have admitted only the fact
of the prior act or some sanitized version of it. But he never asked the trial
court to do so, and has thus forfeited the issue on appeal. (People v. Clark
(2016) 63 Cal.4th 522, 561.) Even if he had not forfeited the issue, it would
fail on the merits.
Scarborough relies on Disa, where the Court of Appeal held it was error
to admit the inflammatory details of a prior domestic abuse, even if the fact
of the prior offense was properly admitted. Scarborough’s reliance on Disa is
misplaced. There, the details that should have been excluded were
inflammatory because they touched on a key issue in the case other than the
defendant’s propensity to commit violence against a partner or former
partner.
In Disa, the defendant was charged with murder and a jury ultimately
found him guilty of first-degree premeditated murder. (Disa, supra, 1
Cal.App.5th at pp. 657-658.) Prior to trial, the defendant admitted that he
killed his girlfriend by putting her in a chokehold but denied that he meant
to kill her. (Id. at p. 657.) Thus, the defendant’s intent and the
circumstances under which he killed his girlfriend were at issue at trial.
(Id. at p. 669.)
The trial court found that, in light of the defendant’s claim that the
killing was an accident or arose from an argument, his prior domestic
violence was admissible to show his propensity to commit violence upon a
partner or former partner under section 1109. (Disa, supra, 1 Cal.App.5th at

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p. 669.) But in its section 352 analysis, the trial court ruled details related to
premeditation and deliberation were not admissible. (Id. at pp. 669-670,
673.) Nonetheless, an officer testified that in the prior incident, the
defendant waited for over 12 hours in his former girlfriend’s apartment,
including more than six hours hiding in a closet, then attacked her and her
new partner in the middle of the night. (Id. at p. 670.)
The Court of Appeal concluded this evidence was highly inflammatory
and was not relevant to the purpose for which the past domestic violence was
admissible, that is, to show a propensity to commit violence to a partner or
former partner. (Disa, supra, 1 Cal.App.5th at p. 674.) “Given the serious
risk the jury would improperly use the specific facts of defendant’s past
conduct to find premeditation and deliberation in the current matter, it was
incumbent upon the trial court to exclude evidence of defendant’s extensive
planning and waiting in the prior incident.” (Id. at p. 673.)
Here, unlike in Disa, the details of Scarborough’s prior attack on David
were not, and could not have been, used for any reason other than the proper
purpose of showing Scarborough’s propensity to commit violence against
elders. Therefore, the analysis in Disa is inapplicable to this case.
Scarborough also argues that David’s testimony and photographs of
David’s injuries generally biased the jury against him. He takes specific
issue with David’s testimony describing him in “negative detail” and stating
that he and another man were “smoking, swearing, yelling . . . pretty much,
you knew they were loaded.” Scarborough also raises concern with David
testifying that Scarborough threatened to kill David. Scarborough, however,
also threatened to kill Robert. Further, multiple witnesses testified that on
the day of Scarborough’s attack on Robert, Scarborough’s demeanor, facial
expressions, and body movements caught their attention, or made them

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scared and uncomfortable. David and the store manager also both testified
that their impression was that Scarborough was a transient person. David’s
testimony did not paint Scarborough any more negatively than the testimony
regarding Scarborough on the day he attacked Robert.
The details of Scarborough’s attack on David were also no more
inflammatory than the evidence regarding Scarborough’s current offense. As
discussed above, although Scarborough hit David multiple times, his attack
on Robert was not necessarily less egregious where he continued to yell and
wave a flashlight at Robert, while witnesses stepped in between them or told
him to leave Robert alone. E.G. even became emotional on the stand while
describing Robert on the ground with blood on his face. Additionally, the
photographs of David’s injuries are not inflammatory but rather show that
when compared to photographs of Robert’s injuries, the attacks were more
similar than not. In the photographs, both David and Robert have a visible
cut on their face. While David’s cut is slightly larger than Robert’s, both
appear to be surface wounds. Further, David’s testimony that his nose was
broken and his right eye was swollen are subdued by the photographs. In
two photographs from the day of the incident, David’s nose and right cheek
area are red but do not appear bloody. The third photograph shows a slightly
bruised and swollen eye. In all three photographs, David’s broken nose is
barely discernible.
In sum, the evidence regarding Scarborough’s prior act, including
David’s live testimony, the details of the prior incident, and the photographs
of David’s injuries, were not the sort to evoke an emotional bias against
Scarborough and were therefore not unduly prejudicial.
For the foregoing reasons, the trial court did not abuse its discretion in
admitting the evidence of Scarborough’s prior act of elder abuse.

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 DISPOSITION
The judgment is affirmed.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P. J.

DO, J.

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